Boise law firm takes on appeals with ex-Idaho Supreme Court justice at helm

Idaho’s largest law firm turned to a familiar face when it decided to establish a division to tackle appeals cases.

Cathy Silak, 67, a former judge on the Idaho Supreme Court and Court of Appeals, has returned to Boise-based Hawley Troxell, where she worked twice before. This time she is “of counsel,” not an associate or partner.

She stepped down as founding dean of Concordia University’s Boise law school after seven and a half years. She returned to Hawley Troxell in July, saying she wanted to get back to practicing law.

“We already have really excellent attorneys here who have a great deal of depth,” Silak says. “To bring that focus of added expertise in the appellate arena is something that we’re striving for.”

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The firm had considered establishing an appellate division, but the plan came to fruition only after lawyers from another established Boise firm, Moffatt Thomas, decided this year to close their practice and join Hawley Troxell.

Silak oversees 15 lawyers who tackle cases that end up before the two courts where she sat and the 9th U.S. Circuit Court of Appeals.

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“We did some research and found that most firms are pulling themselves out of having a specialized practice for appeals,” Miller says. “That’s because it’s a little different skill set.”

While trial courts focus on determining facts, appeals focus on whether a case has an issue “of law that the trial judge got wrong,” says Stephen Thomas, a partner.

Silak first went to work for Hawley Troxell in 1984, staying for five years. From there, she served as associate general counsel of the now-defunct construction giant Morrison Knudsen.

Gov. Cecil D. Andrus appointed her to the Idaho Court of Appeals in 1990. She was the first woman to serve on the four-member court, which handles appeals of District Court decisions assigned to it by the Idaho Supreme Court. Three years later, Andrus named her to the state’s high court to replace Robert Bakes, who retired.

Silak kept her seat in the 1994 election, defeating Wayne Kidwell (who joined the court four years later after winning an open seat). But in 2000, Silak lost to Dan Eismann (who retired from the court this year). The two candidates spent nearly $300,000, then the most expensive judicial race ever in Idaho. Though judicial races are supposed to be nonpartisan, Eismann was supported by Idaho Republican leaders, while Silak had ties to Democrats.

She returned to Hawley Troxell in 2001, then left in 2004 to become CEO of the nonprofit Idaho Community Foundation. In 2008, Silak became the founding dean of the Concordia school, which was not yet built; it opened in all 2012 and secured its accreditation from the American Bar Association in 2015.

Precedent-setting appeals can draw litigants

Besides representing original clients in an appeal, Hawley Troxell’s lawyers can represent other people or organizations who have an interest in the case’s outcome.

“Perhaps we could alert them to the fact there is a potentially precedent-setting case on the docket that could interest them,” Silak says. “To be able to present a well-crafted argument that would be persuasive to the appellate court, that makes public policy sense, would be a value.”

For example, earlier this year, law firms representing a dozen groups opposed to Idaho’s so-called ag-gag law — including journalists, book publishers, food-safety groups and labor unions — filed friend-of-the-court briefs with the Ninth Circuit.

“That’s probably the most recent prominent example,” Silak says. “There are just more and more cases in which the federal courts and the state courts are being asked to make really important rulings. As Idaho’s economy grows, we will have more opportunity to be a major player.”

Even before Silak returned to Hawley Troxell in early July, she participated in dry runs, where an attorney would ask her to listen to an argument and offer suggestions for strengthening it.

“They get a rehearsal,” says Brad Miller, a Hawley Troxell attorney who is working with Silak as the head of the appellate division and who is not related to Silak or Nicholas Miller. “For your first oral argument, how do you address the court? Little things like that all the way up to how do you think the questioning will go? What types of questions will they ask?”

‘Complete candor is essential’

Until trial cases, where evidence is presented in court before a judge or jury, appeals rely greatly on written briefs. The lawyers spend only a short time before the judges arguing their cases and answering questions.

“The work at the appellate level is a presentation product that has to be more elevated,” Silak says. “It has to be very well thought out, because the judges and justices are going to read every single word very carefully in those briefs. The stakes there are very high.”

The best piece of advice Silak offers any attorney appearing before appellate judges is that “complete candor to the court is utterly essential.”

“Some of the worst experiences of any lawyers at the Idaho Supreme Court involved a justice asking a question about the [written] record and the attorney not being able to respond or possibly responding in error,” Silak says. “Know your record.”

The union of two big firms

The decision by Moffatt Thomas lawyers to join Hawley Troxell created a legal Goliath — by Idaho standards, at least.

Hawley was already Idaho’s biggest firm, and the additions boosted its roster to 75 lawyers, including 60 in Boise. That pales in comparison with Perkins Coie’s 300-plus lawyers in Seattle or Holland & Hart’s 200-plus in Denver. But it allows Idaho-based Hawley to compete more effectively in business law and courtroom lawyers with the local offices of big regional firms like those.

“The bottom line for us was there is strength in numbers,” Miller said. “If we could put more people under the same roof, we would be more attractive to the marketplace and be more efficient and provide better value for our clients.”

The union was not a merger. Moffatt Thomas, based in Boise, ceased operations without Hawley Troxell receiving any of its assets or taking responsibility for any expenses. That was easier than a merger, representatives of both firms said.

How the deal came about

The two firms began talking last spring and reached an agreement quickly, Miller said.

About 25 Moffatt Thomas lawyers and several paralegals now work for Hawley Troxell. Some other lawyers retired or took positions elsewhere, said former Moffatt Thomas shareholder Stephen Thomas, who now works at Hawley Troxell.

Willis Moffatt founded his law firm in 1931. Eugene Thomas joined the firm in 1956, leading to the formation of Moffatt Thomas. Stephen Thomas is Eugene’s son.

Thomas said it wasn’t a big sticking point to lose his firm’s name in going to Hawley Troxell. Names longer than two words become unwieldy, he said.

“The idea of concentrating in one or two words makes more sense for recognition purposes,” Thomas said.

Effects of the expansion

The firm also added Paul Street, a former 25-year Moffatt Thomas partner who had planned to return to that firm after he retired in September as general counsel of BMC, a national building materials provider formerly based in Boise. The company moved its headquarters to Atlanta in 2014 and merged in 2015 with Stock Building Supply Holdings Inc. Miller said he had been looking for a senior lawyer who could serve as a mentor for younger corporate lawyers.

Gov. James Hawley

Idaho Statesman file

Hawley Troxell traces its lineage to Feb. 14, 1870, when Idaho was a territory. James Hawley was a U.S. attorney and later served as mayor of Boise and Idaho governor.

John Sowell: 208-377-6423, @JohnWSowell. This story is part of the special coverage of the business of law in the Nov. 15-Dec. 19, 2017, edition of the Statesman’s Business Insider magazine.